As individuals continue to age they are encouraged to consider creating a plan for their future that entails exactly how they would prefer their assets and loved ones cared for in the case of their passing. A will is a legal document that serves to outline your wishes in regards to how you would like your children to be cared for and the distribution of your assets upon your death. This document is extremely important in guaranteeing that your wishes and best interests are met to the greatest extent possible. Without a will present, the court will be responsible for making the decisions concerning your assets and loved ones. In most cases, the court’s decision does not align with the plans you initially had in mind.The executor of the will is responsible for carrying out all of the wishes you expressed within your will. The last will and testament indicate the steps the executor should take to guarantee that all of your desired actions are taking place. In most cases, an individual selects an executor that they trust to take all of the proper actions on their behalf. However, in some cases it is possible that the executor does not follow through with their promise and refuses to follow the decedent's wishes. If this is the case, an Estate Planning Attorney should be contacted immediately in order to ensure that all of the decedent's wishes are being followed.
What are the common duties an executor is responsible for accomplishing?
An executor is responsible for filing a copy of the will with the probate court, while making the decision regarding who will inherit the descendant’s property. If probate becomes required, you are responsible for filing a petition with the court to ensure that you are the appointed executor. Once the individual passes, you are responsible for informing government agencies, credit card companies, and banks of the individual’s passing. The executor should try their best to maintain the property prior to it being distributed or sold according to the will. Payment of the estate’s taxes and all debts is required by the executor. Most importantly, the executor is tasked with the role of distributing assets based on the specified wishes expressed within the will. The executor is tasked with the assignment of keeping all beneficiaries informed and remaining updated on all estate based transactions. This can be a difficult role, thus it is encouraged that executors reach out to an attorney for guidance in completing their role.
Can an executor override a beneficiary?
An executor is able to override a beneficiary as long as the executor follows all of the actions stated in the will. The executor must follow all mandates made by the court, which include the payment of federal and state taxes and debts. An executor does not always have the ability to override a beneficiary because it truly depends on the case at hand. The executor is allowed to make a judgement call, however this call should align with the testator’s best interest as stated in his will and last testament. The court will not approve of the removal of an executor if the executor was acting in the best interest of the creator of the will. Under most circumstances an executor should reach out for guidance from an experienced attorney regarding any inquiries related to the will and last testament. This will ensure that the executor will not take any harmful actions that will result in civil liability.
What are the most probable mistakes an executor can make?
The most common mistakes made by an executor pertain to not abiding by the information stated within the will and last testament. The role of the executor is to follow the testator’s best interests in regards to his financial assets and property. With this in mind, the testator should not allow the assets in the will to disappear on behalf of their carelessness and lack of effort. The executor should manage the creditors and must pay taxes, or else they are not following their responsibilities. The executor must not sell property below fair-market value, as this is considered self-dealing and will result in civil liability. A property should not be sold by any means until all due diligence has been completed, including getting an appraisal on the property and waiting to hear from multiple offers before making the final decision. The executor is responsible for communicating with beneficiaries to ensure that the will and last testament are followed to the greatest extent possible.
Can an executor be legally removed?
An executor may be legally removed in the case that he fails to complete his duties. If he does not follow the last will and testament and purposely undermines the best interest of the testator, there is every reason for appropriate removal. If the executor stole from the estate, incorrectly maintained records, hid assets, or did not follow the wishes of the testator, then the executor is subject to immediate removal. There must be reasonable evidence that demonstrates the flaws in the executor’s actions to subject his removal. If the court removes the executor then they are responsible for appointing a new one to take his place. The executor will be held personally liable for any improper actions taken. In the case that the executor did not pay the estate taxes, then the executor must pay any interest or penalties that have accrued as a result of his careless actions. A beneficiary can file a lawsuit against the executor to urge the removal of the executor in the instance that the will and last testament is not properly followed.
For further estate planning information please contact the Law Office of Inna Fershteyn at 718-333-2394 to effectively discover your options concerning an executor who fails to follow the will and last testament.